Village backs its attorney in negotiation process

BROCTON – Coming to an agreement with New York State is taking longer than the Village of Brocton anticipated where its water plant upgrade is concerned. But as arduous as the waiting game is, village attorney Sam Drayo has the support of the board of trustees.

Drayo updated board members during their regular board meeting on the slow progress of the agreement, which calls for a 32 percent share of the proposed improved project, estimated at total cost of $4.5 million. Fifty percent of that share or $720,000 will be paid after Comptroller approval, 25 percent or $360,000 will be released upon written certification by the consulting engineer that the project is 50 percent completed and the remaining 25 percent will be paid upon the village certifying in writing that the project is substantially complete.

The 20-year agreement also calls for NYS Department of Corrections and Community Supervision to pay its share of operation and maintenance costs of the water supply system, a surcharge for exceeding the amount of water authorized to be sold to the Lakeview Facility (110,000 gallons per day) and 32 percent of any change orders associated with the project.

“We’ve gotten over the hurdles with the Attorney General’s office. It’s now at the State Comptroller’s office where it’s experiencing some stumbling blocks. They have certain things they want in the contract that I don’t feel is in the best interest of Brocton,” Drayo told the board.

Things the state is asking for include: wanting Brocton to commit itself to not exceeding the capital project amount; wanting any potential loan forgiveness that Brocton might be awarded; putting their stamp of approval on any rate changes; and credit for using less than their average estimated water usage (which amounts to 110,000 gallons per day.)

The Lakeview Facility, located on Lake Avenue outside of the village lines, pays a premium customer rate, as Portland water district customers do, explained Drayo.

“The prison is considered an outside of the village user, and they should be treated the same as any other customer. They shouldn’t be asking for an inside rate. They are not treated the same as village residents who pay village taxes. As far as them wanting to approve any rate changes, none of our village residents enjoy that option. We have guaranteed to provide the prison 110,000 gallons per day. They feel that if they don’t use that, they should be credited. They need to understand that the building is being designed and constructed to specifically handle that capacity. We’re trying to create a very fair contract for all sides here. With the provision of the village issuing a penalty if they exceed their 110,000 gallon per day usage, and then asking for a credit if they use less than that doesn’t meet any logic.”

Trustee Nick Rizzo agreed, saying, “That 110,000 gallons is based on their average usage, is it not? If they go over their usage and are issued that penalty, that penalty goes to pay over time for our plant’s operation to produce more water.”

Trustee Dale Van Vlack also pointed out that currently a portion of the facility’s housing operation is closed.

“If that annex was open, they would be using a lot more water.”

Brocton Mayor Dave Hazelton responded, “That EFC loan is made to Brocton, not the state. And it was granted because of the income level in the community.”

Drayo, who noted that the state’s consulting attorney has been more than gracious in his dealings with the contract and is working amicably through the process, also pointed out that Lake Erie State Park, a state entity outside the village that is provided with water “pays a full rate, and we never hear a thing from them.”

The attorney also questioned whether it was even legal for the state to technically bind future governing village boards to a specific utility rate in years to come by asking to have input in rate changes.

The contract was signed in August by Mayor Hazelton, who added “Sam, you’re doing a good job negotiating for us. We fully back what you’re saying and you understand what our position is. I would just say continue on. I would point out, though, they are causing us to miss another building season.”

Drayo stated he has reviewed the contract that covers water service for Attica Correctional Facility which he described as “a very simple contract.”